How to tell if something is a workplace right

Employment Law Column - 9 August 2017

Some people like to get a bit creative when it comes to their “rights” at work. You wouldn’t think you’d need to explain to employees that they don’t have a fundamental human right to come in after 10am because they had a “big night” or that they shouldn’t change into lunchtime activewear inside their glass office, but sometimes you do.

In reality, where do workplace rights actually begin and end? Lucky for us, the Fair Work Act has gone to the trouble of defining them for us.

What does the Fair Work Act mean by ‘workplace rights’?

We have the right to not be treated differently due to our race, sex, age, or disability, among other things. Disappointingly for some, pointing and laughing at someone for their poor choice of hairstyle remains fair game (yet could constitute bullying if repeated). We have the right to enjoy the benefits and protections of our employment agreements or any relevant awards or enterprise agreements, such as being paid what we’re owed. We also have the right to participate in lawful union activities.

The Fair Work Act even gives us the right to make a “complaint” or “inquiry” while at work, although it is not all that clear whether this protection extends to complaints about the choice of Nespresso coffee pods in the kitchen, or whether it needs to be about something more substantive (such as the overabundance of tuna sandwiches at work conferences). At the very least, it appears to need to be related to your work – it’s probably not a workplace right to be able to complain about your noisy neighbour, unless you work with them.

Cases on the subject also suggest that a complaint or inquiry has to be about something that would have a direct and tangible impact on your employment, so it’s no good protesting the long-winded speeches management give at work functions. Complaints which have been upheld as exercising a workplace right include:

employees not being paid commissions in accordance with their employment agreement;

a colleague having a conflict of interest in choosing to engage their daughter as being a preferred supplier to their business;

and inappropriate statements made to them by a senior manager.

In contrast, employees expressing concerns about another staff member’s dissatisfaction with their job, or about the general lack of structure or direction within the business, have been found not to be exercising a workplace right.

What are the “right” takeaways about workplace rights for your business?

It’s sometimes, but not always obvious when something is or isn’t a workplace right. When in doubt, err on the side of it being one, and avoid the risk of infringing upon a legitimate right.

You should have a clear set of policies which outline and detail well-known workplace rights, such as the right to not be discriminated against on an unlawful grounds.

Your employees should receive regular training to ensure they are aware of their own and others’ workplace rights and the possible consequences for infringing upon them.

What’s the purpose of workplace rights?

Why does any of this matter? The Fair Work Act prohibits anyone taking “adverse action” against someone else because they have (or might exercise) a workplace right. We’ll take a closer look at the meaning of “adverse action” in our next article, but for now it’s enough to say that people aren’t allowed to do bad things to others if they are motivated by the existence or use of a (genuine) workplace right.

Employees’ workplace rights are not always clear cut. The principles to keep in mind are that the rights are protected by law and need to relate to work. Employees don’t have an absolute protection to make a complaint or inquiry – it needs to be, at minimum, reasonable and related to work. We wouldn’t, for example, be pushing the “right” to leave at noon on a Friday.

This article is part of a regular employment law column series for HRM Online by Workplace Relations & Safety partner Aaron Goonrey and Lawyer Luke Scandrett. It was first published in HRM Online on 8 August 2017. The HRM Online version of this article is available here.

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